' RAJA BASHIR AHMAD KHAN (CHAIRMAN).---This is an appeal against the Order No, 3904- 08/3-/0/94, dated 5-5-1994 passed by the Director Agriculture whereby the appellant has been removed from service as a result of proceedings initiated under Azad Jammu and Kashmir (Efficiency and Discipline) Rules, 1977.
2. Briefly stated the facts are that the appellant joined the Agriculture Department as Baildar on 1- 3-1982 and was later on promoted and appointed as Field Assistant on 3-1-1994. The appellant was allowed leave for a period of two months on 1-11-1986 and, thereafter, he submitted a Medical Certificate for further leave of three months. On the expiry of this period the appellant reported to District Agriculture Officer to assume his functions. The appellant was not allowed to join the duty.
Some inquiry was conducted against the appellant and as a result of that inquiry it came to light that the appellants had embezzled a sum of Rs,7,399. The appellant was shown as absent from the duty and resultantly he was proceeded under the Efficiency and Discipline Rules, 1977 and as a result of proceedings under the said Rules, the appellant was removed from service through the impugned order. The respondents have submitted their written objections and have refuted the contents of the memorandum of appeal. The appellant has reiterated his stand in the replication as given in the memorandum of appeal.
3. We have heard the learned counsel for the parties and have gone through the record.
4. The counsel for appellant has vehemently argued that the order of removal from service in respect of the appellant has been passed without observing the legal requirements of the Efficiency and Discipline Rules and thereby the authority and the other Officers have committed material irregularities and illegalities and, therefore, the impugned order is without lawful authority and in violation of the provisions of Efficiency and Discipline Rules. As against this argument of the counsel for appellant the counsel for respondents has contended that the appellant appeared before the Inquiry Committee and has admitted the misappropriation of amount and has also committed misconduct and he has rightly been removed from service.
5. In view of the respective contentions of the parties we have very carefully gone through the record and considered the points raised by the counsel for the parties. The record summoned by the appellant and relied upon by the other party consists of File No,33 which appears to be Personal File of Saeed Ahmad Khan, Field Assistant and File (without number) relating to Complaint No, 159 of 1993 made to Muhtasib Secretariat.
6. The perusal of the record of File No,33 shows that the Deputy Director Agriculture (Extension) by Letter No, 2550-51/Extension/93, dated 27-10-1993 directed the District Agriculture Officer Poonch to hold the inquiry against the appellant under the Efficiency and Discipline Rules, 1977 and submit his report within fifteen days. The operative part of the letter is reproduced:---- {{URDU TEXT}} ' The following order appears to have been written to District Agriculture Officer, Poonch by the Deputy Director Agriculture (Extension):--- {{URDU TEXT}} ' The said District Officer in turn through Letter No, 635 (j r ), dated 4-11-1993 directed the appellant to appear in his Office at 10 a.m. On 14-11-1993 and required him to give his explanation. The appellant submitted his written explanation, dated 13-11-1993 wherein he has stated that he has been unlawfully kept out of his service and he has not been paid pay for the period of six months and the alleged misappropriated amount can be adjusted against this amount. It also appears from the record that prior to the Letter No,2550-51/Extension, dated 27-10-1993 the proceedings for recovery of misappropriated amount was started and the appellant received his pay for the period from March, 1986 to December, 1986 and January 1, 1987 to April 13, 1987 and from this amount he deposited the amount which was outstanding against him and he executed receipt, dated 1-8- 1993. The amount thus misappropriated was recovered from the appellant. No further action appears to have been taken against the appellant with respect to the misappropriated amount and his absence from the duty. It may be noted here that the appellant is a civil servant of grade B-6. The Government has, for the purpose of Clauses (b) and (c) of Rule 2 of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline). Rules, 1977 designated Director Agriculture and Deputy Director Agriculture (Admin) as Authority and Authorised Officer in respect of employees of Agriculture Department in BS-5 to 7. The record mentioned above shows that Deputy Director Agriculture (Extension) issued directions to the District Agriculture Officer to hold inquiry under Efficiency and Discipline Rules against the appellant and submit his report within fifteen days to him. The Deputy Director Agriculture was not a designated Authority and District Agriculture Officer was not an Authorised Officer and, therefore, the directions issued by the Deputy Director were in clear violation of the rules on the subject and were devoid of any legal sanctity. It may be the reason that after submission of the written explanation of the appellant no further action was taken by the department against the appellant.
7. . The department appears to have opened another Chapter as is clear from the record placed in File of Complaint No, 159 of 1993. The Director Agriculture issued directions to Deputy Director (Extension) to proceed against the appellant. This direction was issued through Letter No, 7591/3-)0 /93, dated 18-9-1993. The Deputy Director as Authorised Officer issued charge-sheet to the appellant vide his Letter No, 220-21/Extension/94, dated 2-2-1994 .And by another Order No, 222- 25/Extension, dated 2-2-1994 he constituted an Inquiry Committee consisting of (1) Malik Zaheer Afzal, District Agriculture Officer, Poonch as Inquiry Officer, (2) Qazi Sabir Hussain, Manager Fertilizer (Rawalakot) as Member and (3) Muhammad Latif Bande (Agriculture Officer) as Member. On receipt of Order No, 222-25, dated 2-2-1994 the District Agriculture Officer put the following note:- {{URDU TEXT}} ' On the back of aforesaid order, dated 2-2-1994 District Manager (Fertilizer) gave the following note:-- {{URDU TEXT}} ' The appellant was directed to appear before the Inquiry Committee and his statement as written defence of the charge-sheet was recorded by the Committee on 29-3-1994. The Committee formulated its report on the basis of the statement of the appellant and after inspecting the record.
The Authorised Officer sent his recommendations to the Authority under No, 463/Extension/94, dated 3-4-1994. The Authority after affording the appellant an opportunity of personal hearing passed the impugned order.
8. It may be pertinent for proper appreciation of the conduct of this inquiry to reproduce the charge-sheet communicated by the Authorised Officer to the appellant: {{URDU TEXT}} {{URDU TEXT}}
9. The charge-sheet was sent to the appellant and he was required to submit his reply within a week. The copy of the charge-sheet was also sent to District Agriculture Officer, Poonch with the directions that reply to the charge-sheet be obtained from the appellant and be sent to Authorised Officer so that the inquiry might be completed. The procedure adopted by the Authorised Officer and the Inquiry Committee when seen and judged in the light of the procedure laid down under Rules 5 to 7 of the Efficiency and Discipline Rules appears wholly alien to the said procedure which we endeavour to indicate as under:--
(1) The Authorised Officer has to decide within three days of the receipt of the directions from the Authority under Rule 5 or within such further period as may be allowed by the Authority on the written request of the Authorised Officer whether an inquiry is necessary in the light of the facts of the case.
(2) In case an Inquiry Officer or Inquiry Committee has been constituted the Authorised Officer shall simultaneously frame a charge against the accused civil servant and communicate it to him alongwith the statement of allegations explaining the charge and other relevant facts which are proposed to be taken into consideration.
(3) The accused is entitled to submit his written defence from the day the charge has been communicated to him within a reasonable time which shall not be less than seven days and more than fourteen days before the Inquiry Officer or the Inquiry Committee as the case may be.
(4) The Authorised Officer shall immediately forward the record and other material as is necessary for the conduct of the Inquiry to the Inquiry Officer or Inquiry Committee.
(5) The Inquiry Officer or the Inquiry Committee on receipt of the record and explanation of the accused shall--
(i) enquire into the charge;
(ii) may examine such oral or documentary evidence to prove the charge or in defence of the accused;
(iii) where the witness is produced by the one party, the other party is entitled to cross-examine that witness;
(iv) the Inquiry Officer or Inquiry Committee shall hear the case from day to day and no adjournment shall be given. The reasons for the adjournment has got to be recorded in writing and every adjournment is to be reported to the Authorised Officer. Normally, no adjournment shall be more than a week;
(v) the Inquiry Officer or Inquiry Committee under Rule 7(6) shall complete inquiry proceedings within a period of sixty days commencing from the last date of submission of the written defence by the accused and within ten days of this period of sixty days or within such period as may be allowed, by the Authorised Officer submit his or its findings to the Authorised Officer;
(vi) the inquiry proceedings are of a judicial nature. The statement of witnesses or of any of the parties has to be recorded on oath.
10. Viewing the inquiry proceedings in the light of the above-stated procedure relating to conduct of the inquiry under the Efficiency and Discipline Rules we find that the Authority issued directions on 18-9-1993 to initiate proceedings under Efficiency and Discipline Rules against the appellant.
The Authorised Officer framed the charge on 2-2-1994 thereby violating the mandatory provisions of Rules which require the Authorised Officer to decide within three days of the receipt of the directions of the Authority under Rule 5 or within further period allowed by the Authority on the written request of the Authorised Officer whether inquiry is necessary. The Authorised Officer appointed an Inquiry Committee on 2-2-1994 and sent copy of the charge-sheet to the District Agriculture Officer, Poonch requiring him to get the reply of the accused and send it to him for completion of the inquiry report. Under Rule 6 the Authorised Officer shall require the accused within reasonable time from the communication of the charge-sheet together with a statement of allegations to put in a written defence before the Inquiry Committee. The Authorised Officer instead required the appellant to submit his reply within a week (which again is a violation of the rules which provide the accused a period of not less than seven days or more than fourteen days) and directed the District Agriculture Officer to get the explanation of the accused. The Inquiry Committee did not record any evidence and no written defence was allowed to be put in by the appellant. The statement of the appellant was recorded on 29-3-1994 without putting the appellant under Oath. The appellant denied the charge of the continuous absence from the duty.
No evidence was recorded regarding the allegations contained in the charge-sheet and thus the appellant was deprived of his statutory right of cross-examine the witnesses which could be produced on behalf of the department and was also deprived of producing any evidence in support of his defence. The Inquiry Officer and the Inquiry Committee under Rule 12 of Efficiency and Discipline Rules have the powers of a Civil Court trying a suit under the Code of Civil Procedure in respect of the following matters namely-- summoning and enforcing the attendance of any person and examining him on Oath;
(a) requiring the discovery and production of documents;
(b) receiving evidence on affidavits; and
(c) issuing commissions for the examination of witnesses or documents.
' The appellant was not administered any oath when he was examined by the Inquiry Committee.
The Inquiry Officer or the Inquiry Committee is bound to examine the witnesses in support or defence of the charge on oath. The failure of the Committee to administer oath the appellant is violation of the abovesaid Rules and statement of the appellant before the Committee without oath has no legal sanctity and cannot be read against him. The only piece of evidence appearing against the appellant is devoid of any legal basis, therefore, the charge shall be taken as it has not been proved against the appellant. The above facts reveal that the proceedings under the Efficiency and Discipline Rules were conducted in utter disregard of the procedure laid down in the said Rules.
11. It is most unfortunate that such high Ranking Officers of the departments have shown complete ignorance of the procedure to be adopted to conduct the proceedings under the Efficiency and Discipline Rules. They enjoy a lot of privileges and perks from the public exchequer and they must make efforts to put in their available energy to discharge the duties in accordance with rules and regulations. They are under solemn responsibilities to maintain efficiency and discipline in the department. They will lose nothing if they care to read the relevant provisions of law concerning the matters coming before them for disposal. The Government has been benevolent to provide them the facilities of costly Pajeros and fully furnished offices and in return expects them to perform their duties strictly in accordance with law, rules and regulations. The disregard of rules etc. Not only causes disrepute and dissatisfaction against the Government and its Departments but also causes financial loss to the Government which could be avoided with a bit careful exercise of the official authority. We can only pray to Almighty Allah to give them realization of their official responsibilities.
12. We propose to invite the attention of the Chief Secretary to Notification No, S&GAD/SO-IV-51/82- 1752-1803, dated 13-9-1982 wherein Guiding Principles for departmental inquiries have been laid down and also the Check List of Requirements for conducting inquiries against civil servants issued under No, S&GAD/E-8/21-130/89, dated 10-1-1989. We also propose that the abovementioned Guiding Principles and Check List of Requirements should be circulated amongst the officers having been designated as Authority or Authorised Officer under the Efficiency and Discipline Rules.
The copy of this judgment under special cover by name be sent to the Chief Secretary for necessary action.
13. In the light of above discussion we accept this appeal and set aside the order under appeal and direct that fresh inquiry may be held against the appellant in accordance with the provisions of Azad Jammu and Kashmir Efficiency and Discipline Rules, 1977. No order as to costs.